-■>    If  Duke  University  Libraries 

t^M^j  Correspondence 

%^tTV  CQf^f  pg^   ^2mo  #226 


^•  -. 


CORRESPONDENCE 


BETWEEN 


GOVERNOR    BROWN 


AND  TIIS 


{S3530:E=LES'^.^:E^"5r    OIE^   '\7U'.^JEt.y 


rPON  THE  RICrHT  OF 


THE  GEORGIA  VOLUNTEERS, 


IN  CONFEDERATE  SERVICE, 


TO    ELECT   THEIR  OWiV    OFFICERS, 


f^JlXlHC. 


BODGHTON,  lUISBET,  BARNES  &  MOORE,  State  PkiStjirs. 

MILLEDGEVILIE,    GA., 
18G3. 


■  1  giiniw-iwBinrmnr  m 


;uk< 


j4-t:.y^^*'y 


CORRESPONDENCE. 


Executive  Department,  ^ 

Milledgeville,  Georgia,  May  30th,  1S63.  5 

}ion.  James  A.  Scddon,  Secretary  of  War : 

Dear  Sir  : — Coir.plaint  is  made^.  to  me  that  the  gallant 
51st  Regiment  of  Georgia  volunteers,  which  covered  itself 
with  so  much  glory  in  the  late  battle  of  Chancellorville, 
and  whose  gallant  Colonel  fell  mortally  wounded  and  died 
of  his  wounds  next  day,  has  been  denied  the  right  to  elect 
a  Colonel  to  fill  the  vacancy  of  the  lamented  Col.  Slaughter, 
and  that  the  General  in  command  has  appointed  a  Colonel 
by  promotion. 

This  is  one  of  the  Regiments  sent  into  service  by  me, 
under  the  requisition  made  upon  me  in  February,  1SG2,  for 
twelve  Regiments,  and  I  am  at  a  loss  to  know  why  the 
General  in  command  shi3uld  have  refused  to  allow  the  Reg- 
iment to  exercise  its  plain  constitutional  right  of  election. 
I  have  understood  this  question  to  be  settled  in  favor  of  the 
right  of  all  State  Regiments,  organized  as  the  51st  was,  to 
elect  their  own  officers  to  hll  all  vacancies  which  have  or 
may  occur.  Indeed,  the  right  of  election  is  too  plain  to  be 
questioned.  I  am  daily  commissioning  the  officers  elected 
by  other  Georgia  Regiments  in  like  cases,  to  fill  vacancies, 
and  I  am  at  a  loss  to  understand  why  the  right  should  be 
withheld  from  the  51st,  which  is  allowed  to  others,  and  to 
which  all  arc  unquestionably  entitled. 

I  have  advised  the  Regiment  that  it  is  their  right  to  elect, 
and  have  directed  them  to  hold  an  election  and  send  the  re- 
turns to  the  Adjutant  &  Inspector  General  of  this  State, 
when  I  will  order  a  commission  to  issue  to  the  person  elec- 
ted. I  have  stated  to  them,  that  this  right  is  allowed  to 
■others,  and  that  they  arc  entitled  to  it,  and  that  I  doubt 
not,  you  will  recognize  the  person  elected  as  the  Colonel  of 
the  Regiment. 

I  trust  you  will  at  once  instruct  the  General  command- 
ing to  permit  the  Regiment  to  exercise  its  right  of  election, 
and  recognize  their  officers  when  elected  and  commissioned 
•by  the  proper  authority  in  this  State. 

I  will  be  greatly  obliged  by  an  early  reply. 
I  am,  very  respectfully, 
Your  ob't  servant, 

JOSEPH  E.  BROWN. 


4 

Confederate  States  of  America,  ^ 

JJ'ar  Dcparfintut,  > 

tlichmonil,  Va.,  June  SGtb,  1503.  ) 

To  Gov.  J.  E.  Broia),  Millalgccillc,  Ga.  : 

Sir: — Your  communication  of  the  30th  May  last  has 
been  received,  uiid  the  consideration  given  to  it  required  as 
well  by  the  serious  consequences  of  the  claim  of  a  right  to 
fill  the  vacancy  occasioned  by  the  death  of  the  lamented 
Col.  Slaughter,  of  the  Olst  Ga.  Rog't,  by  election,  as  of  the 
earnestness  and  contidence  with  which  the  claim  is  presen- 
ted. 

It  appears  from  the  muster  rolls  filed  in  the  office  of  the 
Adjutant  &  Inspector  Gcfteral,  that  the  -3 1st  Ga.  Reg't  was 
mastered  directly  into  the  Confederate  service  on  the  4th  of 
March,  1SG2,  for  three  years  or  the  war. 

The  Regiment  was  raised  under  the  act  of  January  23d, 
.LSG2,  which  authorized  the  President  to  call  upon  the  several 
States  for  troops  to  serve  for  three  years  or  the  war,  and  a 
circular  on  the  subject  from  the  War  Department  of  Feb. 
2d,  1SG2,  w^as  addressed  to  the  several  Governors. 

By  the  10th  section  of  the  act  of  April  IGth,  1SG2',  com- 
monly known  as  the  conscription  act,  it  is  provided  that  all 
vacancies  shall  be  filled  by  the  President  from  the  company, 
battalion,  squadron,  or  regiment  in*  which  such  vacancy 
shall  occur,  by  promotion  according  to  seniority,  &c.,  <tc. 
This  provision  was  supposed  to  apply  only  to  the  troops  re- 
ferred to  in  that  act. 

But,  as  if  ^intending  to  put  the  question  at  rest  on  this 
point,  Congress,  five  days  after,  to-wit :  on  the  21st  April, 
1 802,  passed  a  general  act,  providing  that  all  vacancies 
shall  be  filled  by  the  President,  &c..  *tc.,  by  promotion  ac- 
cording to  seniority,  &c.  It  seems  to  me,  therefore,  that  in 
accordance  with  the  last  act,  all  vacancies  in  volunteer  or- 
ganizations are  to  be  filled  by  promotion  according  to  seni- 
ority, &c.,  and  that  the  vacancy  referred  to  in  the  51st  Ga-. 
Keg't  should  be  so  filled,  and  not  by  election. 

The  laws  and  regulations  provide  for  a  stringent  investi- 
gation as  to  the  fitness  of  an  oflicer  for  the  promotion  to 
which  he  would  be  entitled  by  seniority,  if  worthy  ;  and, 
as  you  state,  that  such  promotion  has  boen  made  of  the  offt- 
cer  entitled  by  seniority,  it  is  presumed  that  he  is  worthy 
to  fill  the  place. 

The  act  of  the  General  announcing  the  promotion  is  in 
accordance  with  the  laws  of  Congress,  with  the  regulations 
and  uniform  usage  of  the  service,  and  is  approved  by  the 
Department. 

It  is  to  be  regretted  that  this  difference  of  opinion  should 
have  existed,  and  that  the  expression  of  your  views  should 
have  been  given  such  direction  as  may  possibly  excite  some 
dissatisfaction  among  the  officers  of  that  gallant  Regiment 


It  is  hoped  that  upon  a  reconsideration,  you  will  concur 
with  the  views  herein  expressed. 

With  esteem,  respectfully  yours, 

^JAMES  A.  SEDDON, 

Secretary  of  War. 


Marietta,  Ga.;  July  10th,  1SG3. 
Hon.  James  A.  Scddon,  Secretary  of  War: 

Dear  Sir  :-^I  have  the  lionor  to  acknowledge  the  re- 
ceipt of  your  letter  of  2Gth  June  last,  in  reply  to  my  letter 
claiming  for  the  gallant  olsL  Georgia  Regiment  the  right  to 
elect  an  officer  to  till  the  vacancy  of  the  late  Colonel  Slaugh- 
ter, who  was  killed  in  battle,  and  whose  vacancy  has  been 
filled  by  the  General  in  command,  by  promotion,  denying  to 
the  regiment  the  right  of  election.  This  action  I  consider 
in  palpable  violation  of  the  plain  constitutional  rights  of 
the  Regiment,  and  while  I  thank  you  for  the  courtesy  of 
your  reply,  I  must  express  both  my  surprise  and  mortifica- 
tion at  your  denial  of  the  right  of  election  to  this  Regi- 
ment and  others  which  entered  the  service  as  it  did  ;  and 
your  announcement  that  the  conduct  of  the  General  in  re- 
fusing to  permit  the  Regiment  to  exercise  this  right,  and 
assigning  to  it  a  commander  by  promotion,  without  regard 
to  the  wishes  of  the  troops,  "is  approved  by  the  Depart- 
ment." 

You  predicate  this  decision .  upon  the  act  of  Congress 
known  as  the  Conscription  Act  and  a  subsequent  act  which 
provides  that  "all  vacancies  shall  be  filled  by  the  President." 
I  predicate  my  objection  to  the  decision. ujjon  the  Constitu- 
tion of  the  Confederate  States,  which  is  of  higher  autherity 
than  any  act  of  Congress,  and  hold  that  the  acts  referred  to 
by  you,  so  far*  as  they  deny  to  the  State  of  Georgia  the 
right  to  fill  this  and  all  similar  vacancies,  ure  in  conflict 
with  the  Constitution,  and  therefore  void  and  of  no  binding 
force. 

The  16th  paragraph  of  the  Sth  section  of  the  1st  article 
of  the  Constitution  of  the  Confederate  States  declares,  that 
Congress  shall  have  power  "to  provide  for  organizing,  arm- 
ing and  disciplining  the  militia,  and  for  governing  such  'part 
of  them  as  may  be  cmyloycd  in  the  service  of  the   Confederate 

States,  RESERVING  TO  THE  STATES  RESPECTIVELY  THE  AP- 
POINTMENT OF  OFFICERS,  and  the  authority  of  training  the 
militia  according  to  the  discipline  prescribed  by  Congress." 
By  this  paragraph  of  the  Constitution,  the  State  of  Geor- 
gia, in  plain  language,  reserved  to  herself  the  ajijmintmerit  of 
the  officers  to  command  any  part  of  her  militia,  when  emp~ 
2)loi/cd  in  the  service  of  the  Confederate  States.  And  by  her 
own  Constitution  and  laws,  she  has  provided  that  such  ap- 


G 

jHtintment  shall  be  made  by  dcrtlon  of  those  to  be  commanded 
by  these  officers,  and  commission  from  the  Governor,  and 
that  vaauidcs  sliall  be  filled  in  the  same  manner. 

By  the  militia,  I  understand  the  Constitution  to  mean  the 
whole  arms-bearing  population  of  the  State,  who  are  not 
enlisted  in  the  regular  armies  of  the  Confederacy.  I  am 
aware  that  writers  upon  English  law  define  the  militia  to 
be  an  organhcil  body  of  troops,  &c. 

That  the  framers  of  the  Constitution  did  not  intend  to 
use  the  term  in  this  sense,  is  evident  from  the  fact,  that 
they  speak  of  the  militia  as  in  existence  at  the  time  they 
are  making  the  Constitution,  and  give  Congress  the  power, 
not  to  make  a  new  militia,  nor  to  organize  that  already  in 
in  existence,  but  to  jirovlJc  for  organ'izhig  the  militia.  In 
other  words,  to  provide  for  forming  into  militar}'  organiza- 
tions the  arms-bearing  people  of  the  respective  States. 
Had  the  Constitution  given  Congress  the  power  to  organize 
the  militia  without  the  qualifying  words,  it  would  have  had 
the  power  to  appoint  the  officers  to  command  them,  or  to 
authorize  the  President  to  appoint  them,  as  they  cannot  be 
organized  without  officers.  The  language  is,  however,  very 
guarded.  Power  is  u;iven  to  Congress  to  provide  for  orsianiz- 
ing  that  which  was  then  in  existence,  without  effective  or- 
ganization, the  militia  or  arms-bearing  people  of  the  States.  • 
When  Congress  has  provided  for  the  organization,  and  the 
States  have  organized  the  militia.  Congress  may  authorize 
the  President  to  employ  them,  or  a  part  of  them  in  the  ser- 
vice of  the  Confederate  States,  but  in  that  case  the  States 
expressly  reserve  to  themselves  the  right  to  appoint  the 
officers  to  command  them,  and  Congress  cannot,  without 
usurpation,  exercise  that  power,  or  confer  it  upon  the  Pres- 
ident. 

But  suppose  I  adopt  tlie  definition  of  the  term  militia  in- 
sisted upon  by  those  who  differ  from  me.  The  result  is  the 
same.  In  our  correspondence  upon  the  constitutionality  of 
the  Conscript  Act,  the  President  says,  "the  term  militia  is 
a  collective  term,  meaning  a  body  of  men  organized."  In 
February,  18.62,  the  President  made  re((uisition  upon  me, 
under  the  act  of  Congress  of  the  23d  of  January,  lS(i2,  for 
twelve  regiments  of  troops,  to  be  employed  in  the  service 
of  the  Confederate  States.  I  proceedt!d  under  the  laws  in 
existence  at  the  time  to  organize  the  regiments  called  for. 
The  51st  Ptegimcnfc  w^as  tendered  as  one  of  the  twelve,  and, 
with  the  other  eleven  and  several  additioucal  regiments  which  , 
offered  their  services  as  volunteers,  was  accepted  by  the 
President,  as  organized  and  officered  by  the  State.  This 
Regiment,  when  tendered,  was  therefore  an  organized  body 
cf  men,  taken  indiscriminately  from  the  arms-bearing  peo- 
ple of  the  State,  who  tendered  their  services  and  were  ac- 
cepted by  the  President  as  a  body  of  men  organized  by  the 
State,  or  as  militia,  according  to  his  own  definition.     The 


rigiit  ot  the  State  to  ajypoint  the  officers,  which  she  does 
upon  the  election  of  those  to  be  commcanded,  was  distinctly 
recognized  in  the  organization  of  the  Regiment.  If  the 
State  possessed  this  right  then,  how  has  she  lost  it  since  ? 
If  it  is  her  right  to  appoint  the  officers  when  the  Regiment 
is  organized,  how  does  she  lose  the  right  when  a  vacancy  is 
to  be  filled  ? 

But  the  case  does  not  rest  here,  undoubted  as  wore  the 
States'  rights  under  ithe  Constitution.  Before  this  Regi- 
ment and  others  called  for  at  the  same  time  were  formed,  I 
wrote  Mr.  Benjamin,  the  Secretary  of  War,  upon  the  ques- 
tion, tliat  the  reserved  rights  of  the  State  and  of  her  troops 
might  be  distinctly  recognized,  to  avoid  any  misunderstand- 
ing in  future. 

In  his  reply  of  JGth  February,  1SG2,  after  the  requisi- 
tion had  been  made,  and  before  the  regiments  were  organ- 
ized, Mr.  Benjamin  said,  "I  will  add,  that  the  officers  of 
the  regiments  called  for  from  the  State  under  the  recent  act 
of  Congress,  are,  in  my  opinion,  to  be  commissioned  by  the 
Governor  of  Georgia,  as  they  are  State  troops  tendered  to 
the  Confederate  Government." 

This  opinion  of  the  Secretary  of  War  was  communica- 
ted to  the  troops,  and  they  were  assured  by  me  that  they 
had  the  right  to  elect  all  the  field  and  company  officers  by 
whom  they  were  to  be  commanded,  while  employed  in  the 
service  of  the  Confederate  States.  "With  this  assurance 
from  the  Secretary  of  War  and  the  Governor  of  this  State, 
they  volunteered  and  entered  the  service  with  the  officers 
elected  by  them. 

Aside  from  their  constitutional  right,  here  was  a  fair  con- 
tract between  them  and  the  Government,  under  which  they 
entered  its  service,  and  have  nobly  performed  their  part ; 
and  I  deny  that  Congress  possess  !s  the  power,  by  any  sub- 
sequent act,  to  wrest  from»them  this  constitutional  right, 
or  that  the  Government,  without  a  most  unjustifiable  breach 
of  its  plighted  faith,  can  now  deny  to  them  the  exercise  of 
tiiis  right.  I  beg  to  be  excused  for  the  use  of  strong  language 
which  may  appear  to  show  too  much  zeal  on  my  part  in 
this  cause. 

By  the  act  of  the  Secretary  of  War,  I  was  made  a  party 
to  this  contract  M'ith  the  troops,  and  my  action  under  ic  was 
ratified  by  the  President  when  he  accepted  the  troops  or- 
ganized under  it  with  officers  elected  by  them,  and  I  feel  in 
honor  bound  to  exert  all  the  energy  and  power  I  possess  to 
prevent  the  injustice  which  is  being  done  to  these  gallant, 
self-sacrificing  men.  If  the  right  is  still  denied,  it  will  be 
my  duty  to  communicate  the  f"acts  to  the  General  Assembly 
of  this  State,  when  again  convened,  and  to  ask  them  to  take 
such  action  in  the  premises  as  will  secure  justice  to  their 
injured  fellow-citizens  and  constituents,  and  protect  their 
plain  constitutional  riirhts. 


You  say  you  regret  that  "the  expression  of  my  views 
should  have  been  given  such  direction  as  may  probably  ex- 
cite some  dissatisfaction  among  the  officers  of  that  gallant 
Regiment."  Much  as  I  may  regret  to  excite  the  dissatis- 
faction of  thu  ofiicers  who  may  be  unwilling  to  submit  their 
claims  to  preierment  to  a  fair  vote  of  those  whom  they  as- 
pire to  command,  I  cannot  be  silent  when  the  rights  of  the 
Regiment  in  the  selection  of  its  officers  are  no  longer  re- 
spected. But  I  cannot  suppose  that  the  dissatisfaction  of 
any  meritorious  officer  who  treats  his  men  humanely,  and 
has  showii  himself  worthy  to  lead  them  in  battle,  will  be 
excited,  as  such  an  officer  has  no  reason  to  fear  the  decision 
of  the  gal i ant  troops  with  whom  he  has  been  long  associa- 
ted, and  who  are  well  acquainted  with  his  character  and 
his  capacity  to  command  them,  and  protect  t'.icir  lives  in 
battle.  It  can  only  be  those  officers  whose  chief  claim  to 
preferment  rest^  upon  their  rank  and  the  date  of  commis- 
sions acquired  by  them,  when  less  known  to  the  troops, 
whose  dissatisfaction  can  be  excited  when  the  troops  are  in- 
formed that  the  Executive  of  their  State  claims  that  they 
shall  be  permitted  to  exercise  what  they  believe  to  be  their 
constitutional  right  of  election,  and  what  thoy  and  their 
officers  know  was  guaranteed  to  tiieni  when  they  entered 
the  service. 

You  say,  further,  that  "the  act  of  the  General  in  announc- 
ing the  promotion,  is  in  accordance  with  the  laws  of  Con- 
gress, Vv'ith  the  regulations  and  uniform  usage  of  the  ser- 
vice." I  trust  I  have  shown  that  the  act  of  Congress,  so 
far  as  it  confers  the  right  of  appointment  in  tliis  case  upon 
the  President,  is  a  nulity,  on  account  of  its  conliict  with 
the  Constitution,  and  it  follows  as  a  necessary  consequence 
that  any  regulation  of  your  Department  carrying  into  exe- 
cution that  which  is  void,  is  also  unauthoritative.  In  refer- 
ence to  the  nnifurm  mage  of  the  service,  I  can  only  remark, 
that  you  labor  under  a  very  great  mistake.  I  think  it  safe 
to  say  that  a  majority  of  the  whole  number  of  vacancies 
which  have  occurred  in  regiments  in  Confederate  service 
from  this  State,  which  entered  the  service  as  did  the  51st, 
under  requisition  from  the  President,  have  been  filled  by 
election  and  commission  from  the  State.  There  has  been 
therefore,  no  uniform  usage  in  favor  of  your  construction, 
but  rather  the  contrary. 

I  am  informed  that  soon  after  the  passage  of  the  conscrip- 
tion act,  this  question  was  raised  in  Colonel  Benning's  Reg- 
iment, General  Toomb's  Brigade,  and  was  carried  up  regu- 
larly to  the  War  Department  for  decision,  and  was  decided 
in  favor  of  the  right  of  the  State  to  appoint  the  officers  to 
fill  these  vacancies,  and  against  the  right  of  the  President 
to  fill  them  by  promotion.  I  am  also  informed,  that  a  case 
involving  this  very  principle,  has  been  submitted  to  the 
Attorney  General  for  his  opinion,  and  that  his  opinion  sus- 


tsiined  the  right  of  ayj)ointme7U  hy  the  States,  in  regiments 
tendered  and  accepted  under  the  requisition  of  the  Presi- 
dent upon  the  State  for  troops,  under  the  act  of  Congress 
aforesaid.  If  I  am  mistaken  in  either  of  these  points,  I  will 
thank  you  to  inform  me  of  the  error,  and  what  has  been  the 
decision  of  your  predecessor,  and  of  the  Attorney  .General 
in  cases  similar  to  that  now  under  discussion.  Certain  it  is, 
within  my  own  knowledge,  that  since  the  report  of  the  de- 
cision above  referred  to,  most  of  the  Georgia  regiments,  or- 
<Tanized  as  this  was,  have  exercised  the  right  of  election,  and 
i  hiive  commissioned  the  persons  elected,  and  they  now  have 
command  under  their  State  commissions,  and  are  recog- 
nized by  the  superior  oilicers  as  entitlt;d  to  their  rank  and 
command. 

In  conclusion,  I  must  express  my  profound  regret  that 
you  have  felt  it  your  duty  to  make  a  decision  in  this  case, 
which,  in  my  opinion,  denies  the  State  the  exercise  of  a  right 
expressly  reserved  by  her  in  the  constitution,  and  which 
does  great  injustice  to  the  troops,  not  only  because  it  de- 
prives them  of  a  legal  right,  which  they  consider  of  great, 
importance  to  them,  but- because  it  violates  the  express 
guaranty  of  this  right,  under  which  the}^  entered  tlie service. 

Amidst  the  weight  of  cares  and  responsibilities  by  which 
you  are  surrounded,  lam  induced  to  hope  that  your  decision 
was  predicated  upon  the  act  of  Congress,  without  having 
given  that  mature  rellection  to  the  Constitutional  question 
involved  in  the  case,  which  its  importance  demands,  and 
that  you  were  not  aware  of  the  understanding  between  me 
and  tlie  Secretary  of  War,  which  I  have  mentioned  above, 
and  upon  which  the  troops  acted  when  they  entered  the 
service.  I  therefore  most  respectfully  ask  a  reconsidera- 
tion of  this  case,  and  trust  I  may  soon  have  the  pleasure  to 
inform  the  gallant  olst  regiment,  and  all  others  organized 
as  it  was,  that  their  right  of  election,  which  I  consider  so 
clear,  and  tliey  regard  so  valuable,  is  recognized  and  respect- 
ed by  the  Confederate  Government. 

I  am,  with  great  respect, 

your  obedient  servant, 

JOSEPH  E.  BROWN. 


Confederate  States  of  America,  ^ 

IVai-  Department f  ^ 

Richmond,  Va.,  July  2oth,  iS63.      > 

His  ExccUcnci/  Jos.   E.  Brown, 

Governor  of  Georgia  : 
Your  letter  of  the    10th  inst.,  has   been    received.     The 
difference  between  yourself  and  this  Department  upon  the 
subject  of  the  right  of  the  51st  Georgia  Regiment,  to  elect 


10 

their  officers  depends  upon  the  fact  whether  this  regiment 
coinposes  a  part  of  the  militia  of  the  State  of  Georgia.  If 
the  regiment  be  a  portion  of  the  militia  ••eniplo3'ed  in  the 
servicjof  the  Confederate  States,"  the  appointment  of  the 
officers  is  reserved  to  the  State,  otlierwise,  not.  The  com- 
pany muster  rolls  of  this  regiment  on  file  in  the  olfice  of 
the  Adjutant  and  Inspector  General,  are  entitled  "muster 
Roll  of  Capt. Company  in  the  51st  Regt.  of  Geor- 
gia vols.,  commanded  by  Col.  \Vm.  M.  Slaughter,  called  int,o 
the  service  of  the  Confederate  States  in  the  Provisional  ar- 
my, under  the  provisions  of  the  act  of  Congress  by  Gov. 
Jos.  E;  Brown,  from  the  4th  March,  1S62,  (date  of  the  mus- 
ter) for  the  term  of  three  years,  unless  sooner  discharged," 
and  the  muster  corresponds  with  this  title.  This  shows  that 
this  Regt.  was  composed  of  volunteers  who  were  enlisted 
as  a  part  of  the  Provisional  army  of  the  Confederacy,  under 
the  supervision  of  the  Governor  of  Georgia. 

The  legislation  of  the  Confederate  States  will  very  clear- 
ly exhibit  that  troops  of  this  description  have  not  been  re- 
garded as  belonging  to  the  militia.  By  the  act  of  Feb.  2Sth, 
ISOl,  to  raise  Provisional  forces  for  the  Confederate  States 
of  America,  the  Congress  enacted  ''th^t  to  enable  the  gov- 
ernment of  the  Confederate  States  to  maintain  its  jurisdic- 
tion over  all  questions  of  peace  and  war,  and  to  provide  for 
the  public  defence,  the  President  be,  and  he  is  hereby  au- 
thorized and  directed  to  assume  control  of  all  military  oper- 
ations in  every  State  having  reference  to,  or  connection  with 
questions  between  said  States,  or  any  of  them  and  powers 
fbreinn  to  them."  The  third  section  of  the  act  is  "that  the 
President  be  authorized  to  receive  into  the  service  of  the 
government  such  forces  now  in  the  service  of  said  States  as 
may  be  tendered,  or  who  may  volunteer  by  consent  of  their 
State  in  such  numbers  as  he  may  require,  &c.,  Sec,  &c. 
The  4th  section  is,  that  sucli  forces  may  be  received  with 
;their  officers  by  companies  or  regiments,  and  when  so  re- 
ceived shall  form  a  part  of  the  Provisional  army  of  the 
Confederate  States,  according  to  the  terms  of  their  enlist- 
ment;  and  the  President  shall  appoint,  by  and  with  the 
consent  of  Congress,  such  general  officer  or  officers  for  said 
forces  as  may  be  necessary  ibr  the  service.  'The  5th  section 
provides  "that  said  forces  when  received  into  the  service  of 
this  government,  shall  have  the  same  pay  and  allowances  as- 
may  be  provided  by  law  for  volunteers  entering  the 
service,  or  for  the  army  (regular)  of  the  Confederate  States, 
and  shall  be  subject  to  the  same  rules  and  government. 

Your  Excellency  must  perceive  that  the  51st  Georgia 
regiment  stands  upon  exactly  the  same  footing  as  the  troops 
tendered  by  the  States,  or  volunteering  under  this  act,  and 
that  this  act  contains  not  the  slightest  intimation  that  the 
troops   received   under   it   were   received   as  State  mililm. 


11 

There  is  a  direct   provision  that   a  portion   of  the  officers 
shall  be  appointed  by  the  President.     - 

The  act  of  Congress  of  the  Gth  March,  ISGl,  authorizes 
the  President  to  employ  the  militia,  military  and  naval  for- 
ces of  the  Confederate  States,  and  to  ask  for  and  accept  the 
•  services  of  any  number  of  volunteers,  not  to  exceed  100,000^ 
ice,  &c.  The  -jtli  section  of  that  act  permits  the  President 
to  accept  the  services  of  volunteers  in  companies,  squadrons. 
Battalions  and  regiments,  whose  officers  shall  be  appointed 
in  the  manner  prescribed  by  law  in  the  several  States,  ta 
which  they  shall  respectively  belong.  But  when  inspected, 
mustered,  and  received  into  the  service  of  the  Confederate 
States,  said  troops  shall  be  regarded  in  all  respects  as  a  part 
of  the  army  of  the  said  Confederate  States,  according  to 
their  respective  enlistments. 

The  President  was  authorized  to  organize  the  companies 
into  superior  organizations  at  his  discretion,  and  to  appoint 
Brigade  and  Division  officers.  It  was  supposed  that  these 
volunteers  would  be  raised  through  the  different  States,  for 
by  the  act  of  11th  May  1S(31,  he  was  authorized  to  receive 
volunteers  directly  w^ithout  the  formality  and  delay  of  a 
call  upon  the  States.  In  this  act  there  is  a  broad  discrimi- 
nation made  between  the  volunteers  and  militia,  and  the 
terms  of  the  act  forbid  the  conclusion  that  the  volunteers 
obtained  through  the  instrumentalities  of  the  States,  were 
to  be  regarded  as  militia  "employed  in  the  ser^-ice  of  the 
C/jnfederate  States."  The  act  of  the  23d  January,  1862, 
under  which  the  ^Ist  Georgia  Regt.  was  called  into  the 
service,  has  immediate  relation  to  the  act  of  March  Gth,  1861» 
The  object  of  the  act  was  to  obtain  from  the  States  the 
complement  of  the  troops  authorized  by  the  act  of  March 
ISGl,  by  the  apportionment  among  them  and  requisition 
upon  their  public  authorities.  The  conditions  upon  which 
the  troops  were  to  enter  the  service  were  prescribed  in  that 
act.  These  were  that  "the  said  troops  shall  be  regarded  in 
all  respects  as  a  part  of  the  army  of  the  Confederate  States, 
according  to  the  terms  of  their  respective  enlistments,"  and 
as  before  shown,  they  were  mustered  into  service  conform- 
ably to  these  conditions.  Forming  as  they  did,  a  part  of 
the  army  of  the  Confederate  States,  they  became  subject 
to  the  authority  of  Congress,  who  were  authorized  by  the 
Constitution  "to  make  rules  for  the  government  and  regu- 
lation of  the  land  and  naval  forces."  Among  the  rules  and 
regulations  proper  on  the  subject,  are  these  relating  to  tlie 
selection  and  promotion  of  ofiicers. 

The  act  of  Congress  of  March  Gth,  ISGl,  provided  for  the 
organization  of  the  volunteer  troops  then  called  for  by 
adopting  the  State  regulations.  The  acts  of  the  4th  session 
of  the  Provisional  Congress  (acts  of  11th  Dec,  22d  Jan. 
and  27th  January,  1SG2,)  provided  a  rule  of  promotion  in 
regard  to  a  portion  of  those  troops  who  were  about  to  re- 


1-3 

inlist.  The  acts  of  the  Kith  April  186:2  aiul  21st  April 
1SG2,  made  a  rule  applicabl'>  ro  the  entire  Provisional  army, 
and  this  rule  was  repeated  in  the  act  of  13th   Oct.  1SG2. 

The  Conscription  acts  of  April  and  October  have  been 
the  source  from  which  the  army  has  been  recruited  for  more 
than  fifteen  months.  It  is  probable  that  one  half  of  those 
'wlio  now  compose  the -3 1st  Ga.  Regt.  have  come  into  it 
through  the  agency  of  these  acts.  This  regiment  and  oth- 
ers accepted  under  the  same  conditions  are  regarded  by  this 
Department,  since  their  acceptance  b}'-  the  Confederate 
States  as  a  part  of  the  Provisional  army,  and  therefore  to  be 
recruited  by  the  agency  of  the  Confederate  States.  The 
rule  of  promotion  prescribed  by  Congress,  is  one  uniform 
in  its  operation,  was  adopted  after  the  experience  and  ob- 
servation of  a  year,  and  clearly  embodies  the  judgment  of 
Congress  as  the  mode  best  calculated  to  insure  the  selection 
of  competent  officers. 

It  is  unnecessary  in  "this  inquiry  to  undertake  a  definition 
of  what  the  meaning  of  the  word  militia  is.  Neither  the 
acts  of  Congress  of  the  U.  S.,  prior  to  the  separation  of  the 
Confederate  States,  nor  the  acts  of  Congress  of  the  Confed- 
■erate  States,  have  regarded  as  militia,  volunteers  who  have 
come  into  the  service  of  the  Federal  Union,  or  the  Confed- 
erate service,  to  form  a  portion  of  the  army  upon  which 
they  rely  for  the  common  defence,  and  it  would  be  difficult, 
in  the  opinion  of  this  Department,  to  assign  a  meaning  to 
the  term  that  would  properly  embrace  such  troops. 

The  postscript  to  the  letter  of  Mr.  Benjamin  of  the  16th 
Jul)^  1S6L,  quoted  by  you,  seems  to  refer  to  the  original  or- 
ganization of  the  troops  prior  to  their  muster,  and  before 
their  acceptance  into  the  Confederate  service,  and  the  prac- 
tice since  their  acceptance,  if  inconsistent  with  the  opinion 
expressed  in  this  letter,  was  probably  a  transient  or  casual 
toleration  of  an  existing  opinion,  without  a  full  considera- 
tion of  the  import  of  the  legislation  of  the  Congress  of  the 
Confederate  States.  After  a  careful  consideration  of  that 
legislation  I  do  not  ^^^^l  that  I  have  any  authority  to  dis- 
pense with  its  conditions,  however,  agreeable  it  might  be 
to  conform  to  tlie  wishes  of  those  who  have  maintained  this 
opinion.  Notwithstanding  my  deference  to  the  views  of 
your  Excellency,  I  must  confine  my  official  actions  to  what 
I  conceive  the  clear  mandate  of  the  laws. 
With  high  esteem, 

very  respectfully,  &c., 
(Signed.)  JAMES  A.  SEDDON, 

Sec'y  of  War. 


13 
Marietta,  August  21st,  1S63. 
Hon.  James  A.  Scddon,  Secretary  of  War: 

Dear  Sir  : — I  have  to  acknowledge  the  receipt  of  your 
letter  of  25th  July,  and  to  express  my  regret  that  I  have 
been  disappointed  in  what  I  considered  a  reasonable  expec- 
tation, that  upon  a  review  of  the  question,  )*ou  would  per- 
niit  the  Georgia  troops,  to  whom  our  correspondence  reters, 
to  exercise  the  right  of  electing  their  officers. 

It  does  not  seem  to  me  that  the  constitutional  objection 
which  I  make  to  the  acts  of  Congress,  which  deny  to  the 
troops  the  right  of  election,  and  give  to  the  President  the 
povs'er  to  appoint  the  officers  to  command  them,  is  success- 
fully met,  by  additional  ({notations  from  the  acts  of  Con- 
gress, to  show  the  intention.  1  have  not  called  its  inten- 
tion into  question,  as  I  think  it  Cjuite  clear  that  it  intended 
to  confer  the  appointing  power  upon  the  President,  but  I 
have  called  in  question  its  right,  under  the  Constitution  to 
do  so.  With  all  due  deference,  I  cannot  see,  how  the  pow- 
er of  Congress  to  pass  a  Statute,  can  be  established  by 
quotations  from  a  Statute,  showing  what  Congress  did  en- 
act, but  not  what  its  powers  were. 

I  cannot  admit  that  the  distinction  which  you  attempt 
to  draw  between  volunteers  and  IMilitia,  has  any  substan- 
tial foundation  in  law  or  fact,  or  that  the  length  of  time 
for  which  they  are  called  into  service,  affects  the  question. 
It  is  very  clear  from  the  letter  of  the  Constitution,  that  the 
militia  of  a  State,  may  "be  employed  in  the  service  of  the 
Confederate  States,"  in  which  case,  Congress  has  power  to 
provide  for  o-oi-c7V)?/?o- them,  but  even  this  power  is  made 
subject  to  the  right  of  the  State,  to  appoint  the  officers  to  com- 
mand them.  It  matters  not  what  Congress  may  choose  to 
call  the  arms  bearing  people  of  the  State,  who  are  in  fact 
her  militia.  When  Congress  asks  the  State,  to  permit  the 
President  to  employ  them  in  the  service  of  the  Confederate 
States,  and  he  makes  requisition  for  them,  and  the  State 
organizes  and  tenders  them,  they  may  be  called  the  armies 
of  the  Confederacy,  or  the  provisional  or  regular  army,  or 
by  any  other  name  which  Congress  may  adopt,  but  neither 
their  existence,  their  identity  nor  their  character  is  changed 
by  the  name.  The  arms  bearing  people  of  a  State,  are  her 
militia,  and  w^hen  the  President,  under  the  authority  of  the 
act  of  Congress,  makes  requisition  upon  the  Governor  of 
a  State  for  them,  to  repel  an  invasion,  and  they  are  tender- 
ed as  organized  and  officered  by  the  State,  and  accepted 
with  their  State  officers  and  State  organization,  they  are 
without  regard  to  the  term  used  by  Congress  to  designate 
them,  the  militia  of  the  State,  "employed  in  the  service  of 
the  Confederate  States."  Nor  does  the  fact,  that  the  State 
tenders  them  as  drafted  men,  or  as  volunteers,  or  for  a 
longer  or  shorter  time,  affect  their  character  or  their  identi- 


14 

ty.  Suppose  a  State  is  invaded,  or  thete  is  a  sudden  insur- 
rection, and  the  President,  by  virtue  of  an  act  of  Congress, 
requires  the  Governor  to  call  out  the  whole  militia  of  a 
State  for  ten  days,  to  repel  the  invasion,  or  suppress  the  in- 
surrection, and  every  man  in  the  State  vohintecrs,  does  the 
fact  that  they  are  not  drafted,  but  volunteer,  destroy  their 
character  of  militia,  and  convert  the  whole  militia  of  the 
State,  into  an  army  of  the  Confederacy,  and  thereby  give 
the  President  the  power  to  appoint  all  the  officers,  and 
take  from  the  State  this  right  which  she  has  carefully  re- 
served in  the  Constitution?  If  not,  how  is  the  principle 
changed,  in  case  the  call  is  for  one  month,  one  year,  or 
three  years,  instead  of  ten  days?  "When  thus  tendered  by 
the  State,  for  what  length  of  time  must  they  "be  employed 
in  the  service  ot  the  Confederate  States,"  before  they  lose 
their  character  of  militia  of  the  State?  and  how  long  must 
they  serve  before  the  President  may,  without  usurpation, 
deny  to  the  State,  her  reserved  right  to  appoint  the  officers, 
and  assume  to  do  it  himself  ?  Must  it  be  for  one  month, 
one  year,  two  years,  three  years,  or  what  other  period  ? 

Under  the  act  of  Congress,  the  President  called  on  me, 
as  Governor  of  this  State,  tor  troops  to  serve  for  twelve 
months.  They  were  furnished,  and  the  States'  right  to  ap- 
point the  officers  to  fill  all  vacancies  was  never  ques- 
tioned. 

Other  calls  were  made  for  troops  to  serve  lor  tliree  years. 
These  were  promptly  responded  to,  and  among  others,  the 
51st  Regiment  was  tendered  and  accepted,  and  the  right  of 
the  State  to  appoint  the  olRcers,  expressly  admitted  upon 
the  record,  with  no  qualification  and  no  denial  of  her  right 
to  fill  vacancies.  Again,  the  President,  has  lately,  through 
you,  made  requisitions  upon  me  for  S,000  troops  for  six 
months,  for  home  defence,  to  bo  used  in  case  of  emergency, 
and  in  repelling  raids,  &C.  These  men  are  expected  to  be. 
most  of  their  time,  at  home,  attending  to  their  ordinary 
business  of  producing  supplies,  &c.  But  the  act  of  Con- 
gress says,  where  they  volunteer  and  are  accepted, they 
shall  form  part  of  the  provisional  armies  of  the  Confeder- 
ate States.  It  will  take  nearly  all  the  men  remaining  in 
theState,  between  18' and  45,  to  fill  this  last  requisition. 
Part  of  them  will  be  volunteers,  and  part  drafted  men. 

Now,  if  all  these  six  months  men,  twelve  months  men. 
and  three  years  men,  have  been  converted  into  armies  of 
the  Confederate  States,  in  the  sense  in  which  the  constitu- 
tion uses  the  term,  (I  do  not  mean  the  sense  in  which  Con- 
gress uses  it,)  and  no  part  of  them  are  militia,  "employed 
in  the  service  of  the  Confederate  States,"  what  has  become 
of  the  militia  of  Georgia?  Nearly  the  whole  arms-bearing 
people  of  the  State,  between  IS  and  45,  are  in  the  service 
of  the  Confederate  States,  the  larger  number  of  them~  or- 
ganized by  the  State  and  tendered  to,  and  accepted  by  the 


15 

Confederate  Government,  with  their  officers   appointed  by  ■ 
the  State,  and  you  now  deny  that  any   part  of  the   railitia 
of  Georgia  are  "employed  in  the  service  of  the   Confederate 
States,"  or  that  the  State  has  the  right  to  appoint  a  single 
officer  to  command  them. 

Again,  I  ask,  how  did  Georgia  get  rid  of  her  militia,  and 
where  are  they?  They  are,  in  fact,  all  employed  in  the 
service  of  the  Confederate  States.  She  has  expressly  and  * 
carefully  reserved  the  right,  when  they  are  thus  employed, 
to  appoint  all  the  officers  to  command  them.  You  do  now, 
so  employ  them,  but  you  deny  her  right  to  appoint  even 
one  of  the  lowest  officers  who  is  to  command  them,  and 
you  justify  this  by  quoting  from  the  acts  of  Congress  to 
show,  not  the  'power  to  take  from  the  State  this  plain  con- 
stitutional right,  but,  that  it  was  its  mtcntmi  to  do  it.  I 
have  never  denied  the  intention^  but  I  can  never  admit  the 
power.  I  look  upon  it  as  a  clear  usurpation,  which  finds 
no  jurisdiction,  either  in  the  Constitution,  or  in  the  plea  .of 
neccmty,  which  is  usually  resorted  to  in  such  cases. 

In  my  last  letter,  I  referred  to  the  opinions  of   your  pre- 
decessors in  office,  and  of  the  Attorney  General,    which  are 
all  reported  to  concur  in  the  view^  take  of    this  question, 
and  requested  you  to  correct  the  error,  if  I  had   fallen  into 
one,  and  to  inform  me  what  had  been  their  ruling  upon  this 
point.     As  your    reply  passes  this  part  of  my    letter  in  si- 
lence, I  understand  the  fact  to  be  admitted,  that  I  am   fully 
sustained  in  the  view  I  take  of  the  rights  of  the  State,  by 
the  opinion  of  the  Attorney  General  and  the  opinions   and 
practice  of  the  different  distinguished  gentlemen,  who  have 
successively  filled  the  position  you  now  occupy.     I  deeply 
regret  that  you  have  felt  it  )^our  duty  to  overrule  the  opin- 
ions of  such  able  and  distinguished  statesmen,  as  those  just 
mentioned,  upon  a  question  involving  a  principle  so  vital  to 
the  rights    and    sovereignty    of  the    States,    when  the  de- 
nial   of  the    rights  of   the  States   can    only    increase   the 
power  and   patronage    of  the    President,    but    cannot  for 
the  reasons  given    in  my    former    letter,    result    in  prac 
tical  benefit  to    the  public    service.    If   your  process   of 
reasoning  be  correct,  that   the    right  of   the  States    to  ap- 
point the  officers  no  longer  exists,  when  it  can  be  shown  by 
reference  to  the  acts  of  Congress,  that  it  intended    to  con- 
fer this  power  upon  the  President,  then  the   Constitution  is' 
of  no  binding  force,  and  Congress  has  power,  by  the  use  of. 
a  term,  or  the  change  of  a  name,  to  abrogate    the  most  sa- 
cred rights  of  the    States,  and  confer  them    all    upon  the 
President. 

In  reply  to  that  part  of  your  letter  in  which  you  state 
that  the  0 1st  Georgia  Regiment,  has  been  recruited  under 
the  conscript  act,  and  that  probably,  one  half  of  its  present 
number,  have  been  in  that  way  added  to  it,  I  need  only  re- 
mark, that  if  it  is  the  right  of  the  State  to  appoint  the  offi- 


10  V. 

cers  to  fill  vacancies  in  the  regiment,  by  commissioning 
those  elected  by  tlip  troops,  the  President,  can  certainly 
have  no  legal  power  to  deprive  the  State  of  this  right.  >  r 
the  men  who  originally  formed  the  regiment,  of  the  riuiit 
of  election,  by  adding  conscripts  to  the  regiment.  If  he 
chooses  to  put  them  in  a  regiment  of  volunteers,  which  has 
the  right  of  election,  he  should  not  interfere  with  this  right, 
but  should  permit  all  to  vote.  •    --- 

But  I  need  not  trouble  you  with  further  remarks,  as  I 
perceive  vour  decision  is  made  up,  doubtless  after  confer-. 
ing  with  the  President,  and  it  is  determined  that  you  shall 
enforce  y?ur  construction.  The  President  has  the  power 
,n  his  own  hands,  and  I  am  obliged  for  the  present,  reluc- 
rantly  to  acquiesce  in,  what  I  consider  a  great  wrong,  to 
thousands  of  gallant  Georgia  troops  and  a  palpable  infring- 
me'.it  of  the  rights  and  the  sovereignty  of  the  State. 

I  will  only  add,  that  this  letter  is  intended  more  as  a  j)ro- 
:.<;.'  against  your  decision,  than  as  an  eflbrt  to  protract  a  dis- 
c'ts.^ion.  which  it  seems,  can  be  productive  of  no  practical 
results.  I  am,  dear  sir, 

Very   respectfully, 

Your  ob"t  servant, 

JOSEPH  E.   BROWN. 


%^ 


Hollinger 

pH8.5 

Mill  Run  F3-1955 


